People v. MISA , 140 Cal. App. 4th 837 ( 2006 )

McINTYRE, J., Concurring.

The crime of torture as codified in Penal Code section 206 was adopted by the voters as Proposition 115 in response to the facts of People v. Singleton (1980) 112 Cal.App.3d 418 [169 Cal.Rptr. 333] (Singleton). (People v. Pre (2004) 117 Cal.App.4th 413, 425 [11 Cal.Rptr.3d 739] (conc. & dis. opn. of McIntyre, J.) (Pre).) There, the defendant was sentenced to 14 years four months in prison for kidnapping and sexually abusing his victim and then chopping off her hands and dumping her in a ditch in a remote location; he gained public notoriety when he was paroled after serving just seven years. In response, Proposition 115 created a new crime of torture “ 1 “to insure that crimes such as Singleton’s receive a minimum punishment of life imprisonment.” ’ ” (Pre, supra, 117 Cal.App.4th at p. 425 (conc. & dis. opn. of McIntyre, J.), quoting People v. Jung (1999) 71 Cal.App.4th 1036, 1048 [84 Cal.Rptr.2d 5] (dis. opn. of Armstrong, J.).)

Notwithstanding the originally proffered basis for Proposition 115, very few, if any, of the cases upholding torture convictions have involved facts analogous to those of Singleton. While I continue to believe that Penal Code section 206 was not intended to alter the existing legal definition of torture (Pre, supra, 117 Cal.App.4th at p. 425 (conc. & dis. opn. of McIntyre, J.), I nonetheless conclude that, for the reasons stated in the majority opinion, the facts before us in this case establish conduct that is sufficiently violent and callous as to support Misa’s conviction for torture consistent with the statutory elements of the offense and the voters’ underlying intent.

A petition for a rehearing was denied July 19, 2006, and the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied October 11, 2006, S145302. Kennard, J., and Werdegar, J., were of the opinion the petition should be granted.